Divisional Manager vs Kuldip Singh And Ors

Heard, learned counsel for the appellant, Mr. Ganesh C. Jha. The New India Assurance Co. Ltd. is the appellant before this Court. Theappeal has

been preferred against the award dated 16.01.2017 passed in Motor Accident Claim Case No. 259 of 2009 passed by Presiding Officer, Motor

Vehicle Accidents Claims Tribunal/M.A.C.T., Ranchi whereby the claimants namely Kuldip Singh and Smt. Lilawati Devi, parents of the deceased

Ajay Singh, have been awarded compensation to the tune of Rs. 4,95,000/- along with interest @ 9% per annum from the date of filing of the case i.e.

23.12.2009 till realization of the amount.

Learned counsel for the appellant has assailed the impugned award on three grounds:

(i) That earlier the claimants have preferred Workman Compensation Case No.18 of 2004 before the Workman Compensation Commissioner, Ranchi,

which was subsequently transferred to the Labour Court, Ranchi and the same was re-numbered as W.C. No.01 of 2016 but the same was dismissed

as withdrawn. Learned counsel for the appellant has further submitted that the application was thereafter filed under Section 166 of the Motor Vehicle

Act and in the said proceeding the award was passed, as such, the award may be set aside as earlier Workman Compensation case has been

dismissed.

(ii) Learned counsel for the appellant has further submitted that learned Tribunal has awarded interest @ 9% without assigning any reason instead of

7.5% as held by the Hon'ble Apex Court in the case of Dharmpal and Sons Vs. U.P. State Road Transport Corporation [2008 (4) JCR 79 (SC)].

(iii) Learned counsel for the appellant has further submitted that learned Tribunal has considered in the operative part that since O.P. No.1 Ashok

Kumar Goyal, owner of the offending vehicle violated terms and conditions of the Insurance Policy by plying the offending vehicle Bus on public place

without having driving licence of the driver, therefore, O.P. No.2, The New India Assurance Company Limited is at liberty to realise the amount from

O.P. No.1, owner of the offending vehicle as such, learned Tribunal ought to have saddled the award upon owner and not upon Insurance Company.

On these three scores learned counsel for the appellant has assailed the impugned award.

Heard, learned counsel for the appellant, Mr. G. C. Jha and perused the impugned award, it appears that on the basis of the information given by the

Chowkidar namely Chamra Oraon, F.I.R. has been lodged as Bero P.S. Case No. 18 of 2004 against the driver of the Bus bearing registration No.

BR-14P-6933, as a person fell down from bus suffered grievous injury and became unconscious. The person was identified by nearby persons as Ajay

Singh, resident of village- Bharno. The person was brought to RIMS but the injured succumbed to the injury and thereafter postmortem of the body

was conducted at RIMS, Ranchi vide P.M. report no.420 of 2004 dated 04.04.2004. After thorough investigation the police submitted chargesheet no.

24 of 2004 dated 22.06.2004 against the driver Kashi Nath Chakarwarti for the offence under Sections 279 and 304A IPC. The vehicle was insured

before the New India Assurance Company Limited vide Policy No.3540900/31/03/03604 valid for the period from 04.08.2003 to 03.08.2004. The

vehicle was having route permit as well as other documents.

Ground No.(i) Maintainability of claim application after withdrawal of workman compensation case ?

From perusal of the impugned award, it appears that initially compensation case was filed before Workman Compensation Commissioner, Ranchi,

which was registered as W. C. Case No.18 of 2004 but subsequently the same was transferred to the learned Labour Court, Ranchi, which was re-

numbered as W.C. Case No.01 of 2006, ultimately the said case was dismissed as withdrawn vide order dated 30.11.2006 by the learned Labour

Court, Ranchi and the said case was not disposed of on merits, thereafter, the instant Motor Vehicle claim case was filed. Thus, the present claim

application was not decided on merit by any Court of law, as such, learned Tribunal has rightly considered the claim application as maintainable.

Thus the ground no. (i) of the appellant is accordingly rejected by this Court.

Ground No.(ii) : Simple interest awarded @ 9% per annum instead of 7.5% per annum from the date of application?

The ground no.(ii) as assailed by learned counsel for the appellant, that 9% interest was awarded contrary to judgment of Apex Court in case of

Dharmpal & Sons (Supra) wherein interest should be 7.5%.

From perusal of the impugned award, it appears that deceased, Ajay Singh was aged about 30 years and the Tribunal has awarded a compensation of

Rs. 4,95,000/- along with interest @ 9% per annum from the date of filing of application though the computation of award is not in accordance with

law as laid dawn by the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. as reported in (2017) 16

SCC 680. This Court while considering the award as just is not interfering with the award and the claimants have also not preferred any appeal for

enhancement of the award. The learned Tribunal has considered the notional income of the deceased as Rs.5,000/- deducted 50% income as

individual expenses and thus calculated Rs.30,000/-per annum as loss of dependency. The deceased was in the age group of 30 years, as such,

multiplayer of seventeen has been used. Under the conventional head instead of Rs.70,000/- the Tribunal has only awarded Rs. 35,000/- which is

contrary to decision in the case of Pranay Sethi (Supra) where it has been held that under conventional head Rs.70,000/- shall be paid i.e. for Funeral

expenses Rs.15,000/-, for loss of estate Rs.15,000/- and for loss of consortium Rs.40,000/-.

Since the less amount under conventional head i.e Rs.35,000/- was awarded by the learned Tribunal as such, this Court is not interfering with the rate

of interest because of less amount under conventional head.

Thus ground no.(ii) is accordingly rejected by this Court.

Ground No.(iii): The principle of pay and recover.

Looking into the ground no.(iii) this Court has considered that the learned Tribunal has given right to recover to the Insurance Company from owner of

the vehicle i.e. insured after payment of the said impugned award as the Tribunal has held in last sub-paragraph of paragraph-10 at page-9, which is

quoted hereunder:

“Considering the materials available on record as discussed above I find and hold that at the material time of the accident driver of the

offending vehicle Bus was not holding valid and effective driving license, he plied the vehicle on public place without holding valid and

effective driving license and violated terms and conditions of the insurance policy, accordingly this issue is hereby decided in favour of

O.P. No.2, The New India Assurance Co. Ltd. and against O.P. No.1, Ashok Kumar Goyal, owner of the vehicle.â€​

While considering this grounds this Court has considered the judgment passed by the Hon’ble Apex Court where the principle of pay and recover

has been discussed by the Apex Court in the case of Oriental Insurance Co. Vs. Nanjappan and Others (2004) 13 SCC 22 4and Manuara Khatun and

Others Vs. Rajesh Kumar and Others (2017) 4 SCC 796.

Considering the same, it will be herculean task for the claimants, who are sufferer of the accident to recover the compensation amount from the

owner. The object behind legislation of Motor Vehicle Act is socio-beneficial legislation for betterment of the claimant, who has suffered in the

accident. Thus ground no. (iii) is rejected.

Under the aforesaid circumstances, learned Tribunal has rightly passed the award directing the Insurance Company to pay the said amount as the

vehicle was insured though the owner has violated the terms and conditions as envisaged under section 149(2) of the Motor Vehicle Act. Since the

vehicle was insured before the Insurance Company it is paramount duty of the Insurance Company to pay the compensation. The finding has been

recorded against owner of the vehicle as such, the Tribunal has rightly given right to recover the awarded amount by the Insurance Company from

owner of the vehicle.

Since the owner has not assailed the impugned award, the Executing Court shall take up such matter expeditiously so that Insurance Company, who

deals with the public money should not suffer.

Considering the amount to be just, which is not pittance nor windfall gain or a bonanza, this Court instead of interfering with the impugned award

dismissed the appeal without interfering on the part of compensation or interest as discussed above.

Accordingly, the instant appeal is hereby dismissed.

The Insurance Company is directed to indemnify Rs.4,95,000/- along with interest @ 9% from the date of award within a period of 90 days from

today with aforesaid liberty as given by the learned Tribunal to recover the same from the owner of the offending vehicle.

The Registrar General of this Court is directed to refund the statutory amount deposited by Insurance Company at the time of preferring of the appeal

within a period of four weeks from the date of filing of the requisition.

Accordingly, the instant appeal is hereby dismissed with aforesaid observation.